Legislators ask to fortify NH privacy laws

Can a prospective employer demand your Facebook password to check you out before he hires you?

Should police be able to go through your garbage - or your cellphone records - without a warrant?

Do you want your personal information collected and shared with government agencies, the courts or marketers without your permission?

Just what does privacy look like in the digital age? Lawmakers will be taking up bills that try to address that question in 2013.

Rep. Peter Sullivan, D-Manchester, wants to bar employers from requiring an employee - or prospective one - to disclose social media passwords. A handful of other states, most recently California and Illinois, have passed such laws.

Sullivan said he has not heard of employers here asking for passwords. However, he said, "I think this is one of those areas where the law has not kept up with the technology. The way we communicate has outpaced the way we regulate privacy rights."

Rather than wait for it to become a problem here, he said, "I think it's better to make a statement at the outset that no, this is not something that's appropriate."

Co-sponsor Katherine Rogers, D-Concord, says the issue is about more than potentially embarrassing photos.

Many people use sites such as Facebook to update family and friends about personal issues, Rogers noted. The risk is that potential employers could find out information that they are legally barred from asking job applicants about, such as age, race, weight or medical conditions.

"Employers could use it to screen out people in a way they're not legally allowed to do," said Rogers, a former Merrimack County attorney.

Adrienne Rupp, vice president of communications for New Hampshire Business & Industry Association, said her organization has not yet discussed or taken a position on the pending bill. But she said she hasn't heard of any companies here asking for such passwords from job applicants.

"Maybe there's some other reason that it wouldn't be good to legislate it, but I don't think it's something that employers are asking for," she said.

Rep. Neal Kurk, R-Weare, a longtime privacy watchdog in the House, has submitted several LSRs - precursors to formal bills - that pertain to privacy rights. One would establish "an expectation of privacy for personal, communication and financial information."

State agencies should not be able to obtain personal information without a court order, whether that's your cellphone records or something you threw away, Kurk said. "They just can't simply make a request. They have to have an individualized case and special warrant in order to get that information," he said.

Kurk submitted another LSR to restrict collection of biometric data by state and municipal agencies. "The idea isn't to prevent this," he said. "The idea is to say if a state agency is going to do this kind of thing, they have to get permission from the Legislature."

He also proposes prohibiting anyone from tracking someone electronically without permission, whether through a cellphone, a GPS device or even a drone, for instance.

Another bill would prohibit taking images of a person's residence from the air. Kurk said he's not talking about the kind of overhead street mapping that companies such as Google already provide online.

"It's one thing to see that there's a building and that the building perhaps has windows in it. It's another thing to take that same picture with such detail that you can read what's inside the window or the lettering on the house," he said.

"We don't want Google Maps to become the cat-burglar's best aid."

Another Kurk measure would require consent before a utility company could install a "smart" meter on a customer's house that would send back detailed information about electricity usage, for instance.

And at the request of the Secretary of State's Office, Kurk submitted an LSR for a bill to limit information sent to the courts for preparation of jury lists. Currently, he said, names and addresses of registered voters are used to draw jury pools, but the courts recently began asking for additional data, such as birthdates. "They're over-reaching," he said.

Rep. Carol McGuire, R-Epsom, is prime sponsor of a bill that prohibits the use of New Hampshire motor vehicle records in any federal identification database. A similar measure passed last year, but then-Gov. John Lynch vetoed the bill, and though the House voted to override that veto, the Senate did not.

McGuire said the issue originally came up here because of problems with a federal immigration database. She said such a ban is in keeping with New Hampshire's past opposition to REAL ID and enhanced driver's licenses.

Her bill would allow law enforcement or other government agencies to obtain such records but only with a court order. "They can't just import the entire New Hampshire population of driver's licenses.

"I don't like the idea of the federal database that knows all," McGuire said. "It just makes my skin crawl."

As technology continues to advance, it's the job of lawmakers to figure out where to draw appropriate lines, Kurk said. "This is another round in the ongoing conflict or battle between commercial interests and privacy interests, and the Legislature is the right place for this battle to play out," he said.

And after 25 years as the House's top privacy watchdog, Kurk said he's heartened to see more lawmakers submitting LSRs to deal with such matters.

"Over the decades, more and more people have come to the conclusion that these are important interests that the citizens have, and that the Legislature needs to address," he said. "It's not just one man standing alone anymore."